Horizontal Federalism & the Big State “Problem”

California regulates pork; does it offend the Constitution that pork producers in other states must comply with its regulations if they want to sell Californians pork? In National Pork Producers Council v. Ross, the Supreme Court emerged sharply divided in its approach to the practical extraterritorial spillover effect of the in-state regulations of a tantalizing market. Although a fractured majority of the Court upheld California’s Proposition 12 against a dormant Commerce Clause challenge, at least five Justices registered profound discomfort, with one dissenter expressly inviting consideration of the problem through the lens of other clauses. This Article analyzes “the Big State Problem,” which has existed in one form or another since the founding of our republic. Examining the Court’s treatment of the dormant Commerce Clause and then turning to the Constitution’s self-executing horizontal federalism clauses—the largely overlooked, under-taught, and undertheorized Article IV, Section 2 Privileges and Immunities Clause, Import-Export Clause, and Full Faith and Credit Clause—this Article concludes that none of these clauses was intended to be or is up to the task of checking a state’s nondiscriminatory regulation of products for sale in its own market. Under the constitutional scheme painstakingly laid out by the framers, who were no strangers to Big States, protection against having to comply with unwanted rules governing an irresistible, big market lies either in a company’s choice to refrain from market participation or with Congress stepping into the breach.